VENKATESH @ CHANDRA & ANR. ETC versus STATE OF KARNATAKA

17. In this appeal, we have heard Mr. Lakshmeesh S. Kamath, learned Advocate for the appellants and Mr. Nikhil Goel, learned Additional Advocate General for the State.

18. Before we consider the merits of the matter, some of the features of the present case which we have found to be quite disturbing must be noted and deliberated upon. The Trial Court in paragraphs 27 to 30 of its judgment extracted voluntary statements of the appellants. First and foremost, going by the parameters of Section 27 of the Evidence Act4 only so much of information which relates distinctly to the facts thereby discovered can be stated to have been proved. The extent and ambit of said provision as well as applicability thereof were considered by the Privy Council in Pulukuri Kotayya and Ors. v. King-Emperor5 as under: “10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered 4 The Indian Evidence Act, 1872. 5 AIR (34) 1947 PC 67. VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA [UDAY UMESH LALIT, J.] may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the “fact discovered” is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate-distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (Emphasis added) As was observed by the Privy Council the words – “with which I stabbed A” were inadmissible since they did not relate to the discovery of knife in the house of the informant. Applying this logic, only that part of the statement which leads to the discovery of certain facts alone could be marked in evidence and not the entirely of the statement. Coming to the instant case and going by the principle and the illustration highlighted by the Privy Council, out of the statement of accused No.1, only the following portion except the words printed in “italics” would be admissible and can be marked in evidence: “…..If I am taken there, I will show the spot where we committed murder, and we will show the place where we have thrown the knife and the rod. And we will show the shop in which we sold the jewelleries.” The expression “where we committed murder” must not come on record. Similarly, all the earlier facts narrated in the statement about past history which are in the nature of self-implication, would be inadmissible as amounting to a confession made to a Police Officer. All the statements namely, Exhs. P-21 to P-24 must be read accordingly.

19. We must observe that we have repeatedly found a tendency on part of the Prosecuting Agency in getting the entire statement recorded rather than only that part of the statement which leads to the discovery of facts. In the process, a confession of an accused which is otherwise hit by the principles of Evidence Act finds its place on record. Such kind of statements may have a direct tendency to influence and prejudice the mind of the Court. This practice must immediately be stopped. In the present case, the Trial Court not only extracted the entire statements but also relied upon them. VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA [UDAY UMESH LALIT, J.]

20. The other disturbing feature that we have noticed is that voluntary statements of the appellants were recorded on a DVD which was played in Court and formed the basis of the judgment of the Trial Court as is noticeable from paragraph Nos.34 and 35 of its judgment. Such a statement is again in the nature of a confession to a Police Officer and is completely hit by the principles of Evidence Act. If at all the accused were desirous of making confessions, the Investigating Machinery could have facilitated recording of confession by producing them before a Magistrate for appropriate action in terms of Section 164 of the Code. Any departure from that course is not acceptable and cannot be recognized and taken on record as evidence. The Trial Court erred in exhibiting those DVD statement Exh.P-25 to 28. As a matter of fact, it went further in relying upon them while concluding the matter on the issue of conviction.

21. What has further aggravated the situation is the fact that said statements on DVD recorded by the Investigating Agency were played and published in a program named “Putta Mutta” by Udaya TV. Allowing said DVD to go into the hands of a private TV channel so that it could be played and published in a program is nothing but dereliction of duty and direct interference in the administration of Justice. All matters relating to the crime and whether a particular thing happens to be a conclusive piece of evidence must be dealt with by a Court of Law and not through a TV channel. If at all there was a voluntary statement, the matter would be dealt with by the Court of Law. The public platform is not a place for such debate or proof of what otherwise is the exclusive domain and function of Courts of law. Any such debate or discussion touching upon matters which are in the domain of Courts would amount to direct interference in administration of Criminal Justice.

22. The last disturbing feature is the fact that Chart Exh.P-29 was taken to be proof of the activities of the gang to which the appellants allegedly belonged. Apart from exhibiting the chart, no details or documents either in the form of chargesheet or orders, depositions were produced on record. If the Prosecution wanted the Court to take note of the fact that there were other matters in which accused were involved, the concerned Chargesheets should have been produced on record along with sufficient details including the judgments or orders of conviction. A mere chart cannot be taken as proof of the involvement of the accused in other crimes either at the stage of conviction or sentence. But that factor seriously weighed with the Trial Court as is obvious from paragraphs 15 to 18 of the order of sentence. In fact, such involvement was taken to be one of the reasons why the death sentence was awarded by the Trial Court. Such a practice can never be approved.

23. We must clarify that the approach at certain stages including the stage of considering the bail application may be qualitatively different. At the stage of consideration of bail, the primary concern is to weigh in balance the liberty of an accused and the possible prejudice that may get visited upon the societal interest in case he is released. It would therefore be apt and proper to consider his involvement in other crimes. But at the stage of final assessment whether conviction be recorded or not, the matter must be considered purely on its merits unless the very membership of a gang or a group or an outfit itself can amount to an offence or as an aggravated form of an offence. Again, at the stage of sentencing, his involvement in other crimes may be a relevant factor provided the concerned material in the form of concluded judgments in the other matters are brought on record in a manner known to law. The established involvement in other matters would then certainly be relevant while dealing with the question whether the concerned accused is required to be dealt with sternly or leniently.

24. We have gone through Chart Exh. P-29. According to said chart, in so far as the present appellants are concerned, they were said to be involved in one more crime which has given rise to Special Leave Petition (Crl) Diary No.24079 of 2020 and was listed along with the instant appeal before us. That matter is still pending consideration before us. Therefore, what weighed with the Trial Court was the alleged involvement of the other members of the alleged gang in so many similar activities, in support of which there was no concrete material, other than the confessions of the appellants.

25. Coming to the merits, the present case is based on circumstantial evidence and as observed by the High Court in Paragraph 31 of its judgment, four circumstances were relied upon to bring home the case against the appellants. Before we deal with the material in support of and connected to said four circumstances, the principles concerning circumstantial evidence cases must be stated for facility. After noting various decisions, following principles were noted in the decision of VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA [UDAY UMESH LALIT, J.] this Court in Sharad Birdhichand Sarda v. State of Maharashtra6, whichprinciples have since then been followed consistently: “151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”” Thus, the first principle is that the circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established.

26. We may now deal with the circumstances to consider whether the prosecution has been able to establish them.

27. The initial reporting in the case was made by Dr. Prakash Vishnu son of the deceased. In that reporting, nothing was alleged about 6 AIR 1984 SC 1622 = (1984) 4 SCC 116 the missing ornaments. However, the Inquest Report noted injuries on the earlobes which were specified in detail in Post Mortem Report (Exh.P- 14). Injuries 11 and 12 of the said Post Mortem Report are quite clear. Further, the statement of PW-1, the husband of the deceased, recorded soon after the incident did refer to the normal ornaments which were missing. It may therefore be taken to have been established that the missing of gold and silver ornaments from the person of the deceased was quite simultaneous with the murder of the deceased. The first circumstance propounded by the prosecution in support of its case was thus well established.

28. We may now deal with the second circumstance regarding recovery of the missing ornaments at the instance of the appellant. It must be noted that the appellants were arrested 15 months after the incident. Soon after their arrest their voluntary statements Exhs. P-21, 22, 23 and 24 were recorded on 01.02.2001. These voluntary statements do indicate the willingness on the part of the appellants to show the shop in which the items of jewellery were sold by them. However, the actual recoveries from the concerned shop were made only on 7th and 8th February, i.e. more than 7 days after the voluntary statements. There is no explanation why it took so much time for the Investigating Machinery to take the accused to the concerned shop. Further, the shop owner could not produce any register or documentation that any of the appellants had come to his shop on a particular day and sold the concerned ornaments. We must therefore go only by his oral assertions and not any contemporaneous record. The description of the ornaments, the weight of the ornaments and the price paid by the shop owner to the appellants and such other details are not forthcoming from any record. It definitely means that the ornaments were not purchased by the jeweller in regular course of his business and he must be taken to be aware that the ornaments were a stolen property. Even then, the ornaments were kept in the same condition by the jeweller for more than 15 months, which again is not quite consistent, as in normal circumstances the nature of such stolen property would be attempted to be changed as early as possible. The crucial aspect is that even after the recovery of the ornaments, no Test Identification Parade was arranged by the Investigating Machinery. The ornaments worn by the deceased were normal ornaments which a lady would wear. Out of three witnesses examined VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA [UDAY UMESH LALIT, J.] by the Prosecution, the mother and the sister of the deceased did not support the case of the prosecution on identification of the ornaments. The only person who supported the case was the husband of the deceased who was not subjected to any Test Identification Parade. The missing links in this circumstance are quite crucial and important. We, therefore, do not hold this circumstance to have been fully established and the connection of the appellants with the missing ornaments cannot be said to have been established.

29. We now turn to the third circumstance which is about recovery of iron rod M.O.- 16 and knife M.O.-17. As the statements of the appellants indicate, these objects were thrown by them near the fence erected by the side of a drainage. The objects were said to have been recovered 15 months later and yet were carrying blood stains sufficient enough for the Chemical Examiner to analyze and report that it was human blood. First and foremost, the objects, going by the case of the prosecution, went completely unnoticed all the while by anyone. During this period of 15 months, the concerned area must have received rain showers on number of occasions. Additionally, there would be insects and other living beings who may feed on the blood stains present on these objects. It is impossible to believe that even after 15 months the material objects would still carry bloodstains. The chemical examination also simply found the bloodstains to be of human blood but failed to analyze the blood group and other details which could be associated with the deceased. Considering the fact that the objects were supposed to have been thrown 15 months earlier in a place which was accessible to everyone and was open to the vagaries of nature, we do not accept said circumstance to have been proved. In our view, this circumstance cannot be held against the accused.

30. We may hold the fourth circumstance to be proved. It is not as if that the prosecution was unaware about the place of occurrence but the fact that the appellants could point the house where the incident had occurred may show knowledge on their part about the place of occurrence.

31. Thus, out of four circumstances projected by the prosecution, the second and the third circumstances must be eschewed for consideration while seeing whether the circumstances form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and whether they rule out every possible hypothesis except the one to be proved by the prosecution. In this analysis, we are guided by the approach which must be adopted in such matters as has been observed in Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh7. The relevant passages from the judgment are: “39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is “inferential evidence” and proof in such a case is derivable by inference from circumstances. 40. Chief Justice Fletcher Moulton once observed that “proof does not mean rigid mathematical formula” since “that is impossible”. However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge “like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches”. The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence. 41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] ) 7 (2010) 2 SCC 748. VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA [UDAY UMESH LALIT, J.] 42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para 20.) 43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail. 44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt. 45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor [11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence. 46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind [AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are: “5. … ‘10. … in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the accused.’ [ As observed in Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 at pp. 345-46, para 10.] “ The same principle has also been followed by this Court in Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974 SC 1144]” 32. We are, thus, left with only two circumstances, namely; first and the fourth circumstances. Before we consider them, a submission advanced on behalf of the State on the basis of Chart Exh.P-29 must be dealt with. According to the said Chart, the appellants belonged to a particular gang which was indulging in crimes of similar nature and as observed by the Trial Court in its order of sentence dated 30.09.2010, there were about 111 cases registered against the members of the gang. However, as stated earlier, not a single document either in the form of a Chargesheet order, depositions or orders were produced on record. A mere chart giving description of offences, numbers and the sections of the offences and about the nature of offences cannot be taken into account at the stage of conviction. 33. Weighing the first and the fourth circumstances on the touchstone of the principles accepted by this Court, in our view, the Prosecution has not been able to discharge the burden to such an extent that the presumption of innocence weighing in favour of the accused stands displaced. As a matter of fact, with the non-establishment of the second circumstance, the first circumstance by itself does not point in the direction of the appellants. In any case, the first and the fourth circumstances are wholly inadequate. They do not form a consistent VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA [UDAY UMESH LALIT, J.] chain leading to a hypothesis sought to be proved by the Prosecution. We, therefore, grant benefit of doubt to the appellants and acquit them of the charges levelled against them. They be set at liberty unless their custody is required in any other case. 34. The appeals are allowed accordingly. Devika Gujral Appeals allowed. (Assisted by : Mahendra Yadav, LCRA)